Tuesday, February 16, 2010


NYLJ 6/03/07


3. Does Judge Edmead get the most interesting cases, or does she make them just seem that way? Then again, it may be as much as appearing sage and succinct in summaries; clean and clear they almost inspire aphorisms in their formation. In this instance, she cut through the P.C. clutter to the core issue, characterizing the matter as dueling protected classes: gender politics vs. religious freedoms.

The case of Fairchild v. Doudek becomes the issue when it is the defense’s company which fires the plaintiff after the president learns he is gay. Like the day after. Any other explanation becomes absurd when the circumstances are made clear.

The plaintiff sees a lesbian magazine on the defendant’s desk and either believes the defendant is into kink, or has a similar inclination to his. The defendant says it is for his gay daughter. The rest of the conversation may have been droll, until the defendant hauls out his bible and starts quoting scripture on the damnation of homosexuals. The following day, his pink-flavored veep is given the pink slip.

The contention is whether or not the defendant has to answer the plaintiff’s counsel’s questions on his religious beliefs. The defendant stands mute on the ground that this would impede his constitutional rights to privacy and free exercise of his religion.

Time to parse, again. In Judge Edmead’s ruling, that word comes up again. “No person should be permitted to use that right as a cloak for acts of discrimination or as a justification of practices inconsistent with the protections against invidious discrimination proscribed in New York State law.” Going further, she nails it when “it forms the basis of a bias against a member of a protected class, an inquiry into balancing the competing interests favors disclosure in order to uncover evidence.” In the matter of a finding of fact, you have to give full disclosure the nod.

The defense motion to compel, outside of the constitutional objections, was as well as that they “were overly broad in scope, vague and confusing”, which sounds more like a personal problem, seeming to sum up in it being likely, “to encourage a jury to equate certain religious beliefs with bigotry.”

To the judge, it was not confusing at all. “It cannot be said that a belief, regarding a protected class member, is irrelevant or has no bearing on establishing discrimination.”

The funny thing is how the counsel for the plaintiff saw the decision. “You can’t have civil rights statutes protecting homosexuals and others and then be put in a position where a person uses religious freedom protections as a shield.”

So let's try to take an axiom to them?

Cloak & Shield. You can't hide the elephant in the room if you want to hide behind it.

Or: Don't call someone a wolf in sheep's clothing, if you want to cry wolf?

[Yup. Fun...within the law.]

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